In recent decades, women’s rights (and the roles of women in society more broadly), have come under increased scrutiny. Trailblazing movements have gradually formed to fundamentally change the way women are treated, both individually and collectively. At first, these groups tackled major and glaring issues such as a women’s right to vote or the right to work in certain professions, but, over time, their focus shifted to more subtle and mercurial differences like pay discrepancy and workplace decorum. While some of these problems took place on a personal level, others were enshrined in law and required critical judicial inspection to reform. With this in mind, feminism began to morph into an independent branch of legal theory which required specific thought and consideration. Simultaneously, important questions have begun to crop up, such as – What are the roots of feminist legal theory? What effect does it have on the legal system? And what is feminism in law anyway? What is the Law on Feminism?
The issue that arises when discussing feminism and its relationship with the law is that there is no real uniform view on the matter. Various models of feminist legal thought exist and each has its own views on the history, achievements, and goals of feminism within the law.
That said, there are some common ideas and assumptions inherent within most strains of feminist thought which can serve as a jumping-off point for further research.
What is Feminism in Law?
Feminism in law (often referred to as feminist jurisprudence) generally relates to the study of the law in relation to its past and current effects on the political, social, and economic equality of the sexes.
Broadly speaking, feminist scholars believe that most areas of the legal system were created by men and thus have a fundamental bias, leaning towards them and away from women. It is believed that this quality has had a profound effect on the role and rights of women throughout much of society and that much of the law needs to be reworked to better reflect this reality.
Much of feminist jurisprudence focuses on issues such as GBV, gender-based discrimination within the workplace, and perceived biases within the legal system.
As with much of feminist jurisprudence, however, the planned solutions for these issues are frequently contested. Some believe that the laws need to be rewritten in a completely gender-neutral fashion while others say that certain distinctions will need to be implemented due to fundamental differences between the sexes.
Alternatively, some feminist scholars claim that biased laws are few and far in between and that the legal system is predominantly gender-neutral already.
In certain areas around the world, feminist jurisprudence has also been expanded to include other affected groups, and thus, discussion can blend with the topic of intersectionality within the law.
When did Feminist Legal Theory Begin?
Most scholars believe that feminist legal theory began in earnest around the 1960s and 1970s, with the term feminist jurisprudence first being used in the late 1970s.
While prominent feminist political movements can be traced back to the late 1800s and early 1900s with protests for women’s suffrage, most forms of formal feminist legal theory only became widespread in later years.
That said, certain elements of the movement point to Marxist theory as the true progenitor of the modern iteration.
What are the Rights of Feminism?
Generally speaking, feminist movements tend to argue for the same rights as any other group. This includes things like the right to vote, work, be educated, etc. As noted though, there is not a widespread agreement among feminist scholars with regard to the viewpoints and ultimate goals of the feminist jurisprudence movement.
While most versions of feminism call for fair treatment and equality before the law, their specific interpretations of what constitutes ‘equality’ are hotly debated. Some feminists believe that true equality will be achieved when the law is completely gender-neutral and without bias. Others, however, believe that fundamental differences between men and women will always necessitate vital legal differences such as when topics like maternity leave are discussed.
What does Feminism Fight For?
Feminist movements tend to fight for different things depending on the country in which they are found. For instance, in Afghanistan, movements are mainly focused on securing fundamental rights such as the right to an education.
In South Africa, a big focus remains on legislation that can help to curb and prosecute instances of gender-based violence and sexual harassment.
By contrast, nations that are seen as having a higher standard of gender equality and parity tend to focus on more esoteric issues like gender bias in advertising.
In short, feminist movements within a county tend to focus their efforts on basic forms of equality before making their way up to more nuanced issues.
Why do we Need Feminism Today?
As much of the world moves towards a more progressive view of fairness and gender equality, it can lead some to ask if feminism is still required today. Of course, it was necessary when women lacked cardinal rights such as the right to vote, but, now that they have them, why is it still around?
Unfortunately, ‘much of the world’ isn’t all of the world and many nations around the planet still place heavy restrictions on the rights of their female citizens.
Many countries still contain worrying levels of domestic violence, legal discrimination, gaps in care burdens, etc., and thus highlight the continued need for feminism on the world stage.
Additionally, while allegations of blatant discrimination are usually challenged throughout the Western world, there are many people who believe that these countries are still a long way off from having true gender equality.
What is Anti-Essentialism Feminist Theory?
In recent years, a countervailing view of feminist jurisprudence has risen up to oppose the more orthodox opinions.
Unlike other models of feminist legal theory, anti-essentialism is the theory that different women have different experiences within the legal system based on certain traits or values that they possess. As such, it is their belief that there cannot be one singular female response to multiple issues as there is too much variance between women.
For instance, it is widely believed by anti-essentialist feminists that black women have marketed different interactions with the legal system than white women. As a result, their responses to issues cannot be curtailed under the umbrella term of ‘feminism’.
In Conclusion – What is Feminist Legal Theory and What does it Fight For?
Feminist legal theory (or feminist jurisprudence) refers to the study of the law from a perspective of political, social and economic equality between the sexes.
Within the realm of feminist jurisprudence, it is generally accepted that the law (being mainly created by men) had/has clear and present biases against women. On a broad level, feminist jurisprudence argues for equal rights between the sexes and for fair treatment before the law. It mainly focuses on highlighting and understanding the biases inherent within the system while tackling gender-based problems such as GBV, sexual discrimination, etc.
Beyond generalised viewpoints, there is little concordance within the movement and many different theoretical models exist for interpretation. Some feminist scholars, for example, believe that the legal system should be completely gender-neutral while others argue that differences should exist to assuage the differences that exist between men and women. Still, other groups exist which believe that the law is already largely unbiased and that male-centric law is an exception to the rule.
In recent years, intersectionality has also played a large role in shaping the feminist jurisprudence movement and has sought to highlight the different experiences undergone by different women depending on factors such as their race, sexual preference, etc.
Proponents of this viewpoint also have heavy ideological crossover with anti-essentialist feminists who believe that there cannot be one universal female voice in answer to their issues.
Campaigns centred on the rights of women go back many years and can be seen in movements such as those which petitioned for women’s suffrage. That said, feminist legal theory as we know it today is generally thought to have been established around the 1960s.
While feminist movements are seen by many in the developed world as redundant, they have a pivotal role to play in other areas around the world where women’s rights have not been as fully achieved. In places like Afghanistan, for example, there are serious restrictions on a woman’s right to education. It should be noted, however, that many feminists within the Western world argue that there is still much work to be done and that they are still a long way off from full gender equality.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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